House Republicans Back Indefinite Detention On U.S. Soil

House Republicans yesterday rejected an effort to limit the authority of the President, military, and law enforcement to indefinitely detain terror suspects captured on United States soil:

In two votes Friday morning, the House backed the president’s powers to indefinitely detain terror suspects captured on U.S. soil.

Lawmakers rejected an amendment that would have barred military detention for terror suspects captured in the United States on a 182-231 vote, beating back the proposal from a coalition of liberal Democrats and libertarian-leaning Republicans led by Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.).

Instead, the House passed, by a vote of 243-173, an amendment to the National Defense Authorization Act (NDAA) sponsored by Reps. Louie Gohmert (R-Texas), Jeff Landry (R-La.) and Scott Rigell (R-Va.) that affirmed U.S. citizens would not be denied habeas corpus rights.

Smith and Amash had hoped to attract enough support from libertarian-leaning Republicans to pass their measure, but only 19 Republicans voted for it, while 19 Democrats voted against.

The detainee fight is shaping up to be one of the biggest for this year’s $643 billion defense authorization bill. The issue nearly derailed passage of last year’s version.

Smith’s amendment would have changed last year’s defense authorization legislation and the 2001 Authorization for Use of Military Force (AUMF) so that terror suspects captured on U.S. soil would be handled by civilian courts, not the military.

Smith argued that indefinite detention gave the president an “extraordinary” amount of power, and said the federal courts have successfully prosecuted hundreds of terrorists since the Sept. 11 attacks.

Smith and his allies said Gohmert’s amendment was redundant, since it affirms what is already true — that American citizens have habeas corpus rights.

Gohmert’s amendment was “offered as a smokescreen,” Smith said.

“It doesn’t protect any rights whatsoever,” he said.

But supporters of indefinite detention suggested that the Smith-Amash amendment would incentivize terrorists to come to the United States, because they would receive more rights on U.S. soil than outside the country.

Gohmert suggested at one point that terrorists “supported” Smith’s amendment.

“We cannot look to guarantee those who seek to harm the U.S. the constitutional rights granted to Americans,” said Rep. Allen West (R-Fla.). “If we extend that to them, this war on terror, now it’s a criminal action.”

Like the detainee issue last year, the debate in the wee hours of Friday morning saw the two sides often talking past one another.

Both sides have claimed the Constitution and the courts are on their side, but legal experts say the federal courts have yet to take a firm position about terror suspects on U.S. soil being detained indefinitely.

This time around, the line is absolutely clear. Smith and Amash proposed that the government actually has to prove you’re guilty of a crime before depriving you of your liberty, something that the founding fathers found significant enough to write into the Constitution. Their opponents want the government to have the power to lock up American citizens without ever convicting them of anything, just because it says someone is a terrorist. Their proposal went down by a vote of 182-231, with only a handful of Republicans joining Amash in support.

As Smith pointed out during yesterday’s floor debate, the Fifth Amendment says no “person” shall be deprived of liberty without due process of law. It doesn’t say “citizen,” and the text of the Constitution uses both words enough that it’s clear the framers understood the difference. “Your beef is with James Madison,” Smith told Thornberry on Thursday. So keep in mind, when Republicans like Rooney say that Smith and Amash want to “coddle terrorists,” they’re not necessarily talking about some heavily armed Al Qaeda fighter in Kandahar. They’re potentially talking about you.

(…)

If nothing else however, it’s illuminating to watch “small-government” Republicans—who have spent the last three years lamenting the loss of freedom caused by a higher marginal tax rate or the regulation of derivatives—defend the most arbitrary big government power imaginable.

Indeed. The fact that Amash was only one of 19 Republicans to vote against this monstrosity is quite telling, isn’t it?

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Indefinite detentions of foreign terror suspects captured on U.S. soil is a harsh but necessary legal framework to preventing another 9/11-style calamity. I too would reject any proposal to the contrary. Team Obama, especially Panetta, appear to be on board. That’s a good thing.

FWIW, I actually would go a step further. I would subject to indefinite detentions and military trials and further I would suspend habeas rights even for U.S. citizens arrested on U.S. soil if the White House, the DHS Secretary and the Attorney General determine they pose an incipient or actual terror threat, subject only to a covert and unappeable review by a FISA-style court.

When you’re fighting an intractable enemy that doesn’t obey any known rules of warfare you have to take off the kid gloves and put on the brass knuckles.

FWIW, I actually would go a step further. I would subject to indefinite detentions and military trials and further I would suspend habeas rights even for U.S. citizens arrested on U.S. soil if the White House, the DHS Secretary and the Attorney General determine they pose an incipient or actual terror threat, subject only to a covert and unappeable review by a FISA-style court.

So what you are saying is that Bin Laden destroyed America on 9.11, and we might as well accept it.

“Democracy fights with one arm tied behind its back; that’s the way it’s always been, and that’s the way it ought to be. Read Pericles’ Funeral Oration, he says ‘We are besieged by enemies on all sides but we are a courageous people, we are happy, content, and know what our values are’. That is the ultimate security for the United States, is a commitment to the values of the Constitution”

@Phillip: Of course, Justice Kennedy approved the indefinite detention of U.S. citizens in Hamdi. So, Kennedy doesn’t feel this particular hand must be tied behind this democracy’s back.

Justice Scalia’s dissent is more apt:

The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared,

“is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

I know, I know, the Federalist Papers are irrelevant, and Scalia is evil . . . and he lost this argument.

@george: Thank you my friend for the reminder of ‘Pogo’. May I remind you that Mr Jack Kelly foresaw the present so-called-conservative movement bubbling up in the Okeefenokee? You might recall the “Jack Acid Society”?

But we’re talking about giving up liberty because of one event. Doesn’t that seem somewhat disproportionate? Do you think the founders would have called for the end of our liberties because of the death of three thousand innocents?

your response cannot be so completely disproportionate to the threat. this is not 1860. we are not fighting a civil war. to suspend habeus corpus so wantonly, especially in this climate, seems completely counter to our supposed goals.

Roper: So now you’d give the Devil benefit of law!More: Yes. What would you do? Cut a great road through the law to get after the Devil?Roper: I’d cut down every law in England to do that!More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

If President Obama were a principled man, he would order the FBI to seize the GOP congressional leadership as suspected terrorists, and hold them at Guantanamo Bay until his powers to make such warrantless arrests were withdrawn by Congress. This would be the simplest way to make the point of why such powers should not be given to this or any other President.